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Injuries caused by light or moderate turbulence during an airline flight are not automatically excluded from the definition of an “accident” for which an air carrier is liable, the 2nd U.S. Circuit Court of Appeals has ruled. The 2nd Circuit found that a lower court erred in creating a rule of law that “turbulence that is ‘light’ or ‘moderate’ ” under Federal Aviation Administration guidelines can never constitute an “ accident” for liability purposes under Article 17 of the Warsaw Convention. The ruling in Magan v. Lufthansa German Airlines, 02-7172, reversed a grant of summary judgment for Lufthansa by Southern District Judge Naomi Reice Buchwald on a suit brought for injuries suffered by a passenger during a 1999 flight from Munich to Sofia, Bulgaria. The passenger, John. J. Magan, was on his way to the lavatory when the pilot warned that the plane was approaching some thunderstorms and that passengers should return to their seats. As Magan was returning from the lavatory, the plane began experiencing turbulence that the pilot later characterized as “light” and “moderate,” but one passenger later called “very significant.” Magan’s head slammed into an overhang. He suffered a broken nose and either blacked out or “greyed out,” and was taken to a hospital by ambulance when the plane landed in Sofia. He later complained of what his doctor called “cluster headaches.” Lufthansa successfully argued before Buchwald that light and moderate turbulence under FAA guidelines are to be expected in a normal flight and cannot fall within the definition of “accident” under Article 17, which essentially imposes strict liability on carriers for accidents. At issue was the U.S. Supreme Court’s decision in Air France v. Saks, 470 U.S. 392 (1985), where the Court said the term “accident” means an “unexpected or unusual event or happening that is external to the passenger.” The Supreme Court also said that where an injury “indisputably results” from the passenger’s “own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident.” On Magan’s appeal to the 2nd Circuit, Judge James L. Oakes said that while the Saks decision helped with the definition of accident, “courts have continued to struggle with its meaning in particular cases.” The Saks Court, Oakes noted, said that where there is contradictory evidence, it is up to the trier of fact to determine whether a defined accident caused a passenger’s injury, and courts should apply the definition “flexibly � after assessment of all the circumstances surrounding” the injuries. Oakes said that the district court adopted Lufthansa’s argument that “severe” and “extreme” turbulence meet the definition of accident under the Warsaw Convention because they are much rarer. In doing so, he said, the district court crafted a “new rule of law” barring recovery for light or moderate turbulence without giving emphasis to all the circumstances in which the injury occurred. “Furthermore, although the degree of turbulence — as opposed to its mere occurrence — may be relevant, among other factors, to the question of whether an ‘accident’ has occurred as a matter of fact, the trial court’s attempt to graft weather-reporting criteria for pilots onto the definition to create a new rule of LAW is misplaced,” Oakes said. “Neither Lufthansa nor the district court point to anything specific in the history or text of Article 17 itself that would justify making weather-reporting criteria part of a new LEGAL test for whether an ‘accident’ has caused a passenger’s injuries.” Instead, he said, the case law following Saks shows that the definition of accident is a “fact-specific inquiry best left for resolution on an individual basis.” And here, he said, it was unclear from the record whether this particular type of turbulence “is a normal part of any given flight.” It was possible, given the descriptions provided by Magan and his fellow passenger, as well as expert testimony submitted by Magan, that the flight may have experienced “momentary severe turbulence.” Despite these statements, Oakes said, the district court credited the pilot’s characterization. “This is not appropriate at the summary judgment stage, as such determinations should be reserved for trial,” he said. Judges Jose A. Cabranes and Robert Katzmann joined in the opinion. Abram I. Bohrer of Bohrer & Lukeman represented Magan. Peter F. Vetro and Joseph A. Latasso of Gallagher Gosseen Faller & Crowley represented Lufthansa.

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